Programmers and internet freedom activists gather in front of San Francisco City Hall prior to marching to the Phillip Burton Federal Building to protest the arrest of Russian computer programmer Dmitry Sklyarov, Monday, July 30, 2001, in San Francisco. Sklyarov was jailed after developing software that allows the user to circumvent the copyright protections in Adobe Systems eBook reader program. (AP Photo/Ben Margot)

Photo: BEN MARGOT

Programmers and internet freedom activists gather in front of San...

Martyr or criminal? / Debate over electronic copyright law rages as Russian programmers sits in a San Jose jail

Forget freeing Mumia. "Free Dmitry" is the hip, new rallying cry among Bay Area activists.

Dmitry Sklyarov, 26, is a Russian programmer who is sitting in jail in San Jose, charged with violating a 1998 electronic copyright law by writing a program that cracks the copy-protection on electronic book files.

He could become the martyr that technology rights activists need to challenge what they see as a pro-industry, anticonsumer law. Or he could be held up as an example by the government and publishing industry to send a firm message: Digital crime doesn't pay.

All this will be played out in San Jose, if the U.S. attorney for Northern California goes ahead with his prosecution. Sklyarov faces a bail hearing today, his first court appearance in the district. Then the U.S. attorney has 10 to 20 days to indict him.

Sklyarov was denied bail the last time it came up, when he was being held in Las Vegas and later Oklahoma City. But his attorney, Joe Burton, said he was hopeful that Sklyarov would get bail now that he is in the district where he is to be tried.

Here is the chain of events that landed the Muscovite programmer in a San Jose cell: According to his employer, ElcomSoft of Moscow, Sklyarov helped write a program that converts Adobe eBooks -- electronic documents that cannot be copied or e-mailed -- into files that can be easily duplicated and shared online. Sklyarov created part of the program as part of his doctoral work at Moscow State Technical University, said ElcomSoft President Alex Katalov.

Katalov said ElcomSoft then sold the program on the Internet for $99 per copy -- although only 10 to 15 copies were bought before ElcomSoft's billing service stopped accepting orders at the request of eBooks maker Adobe Systems Inc. of San Jose.

The criminal complaint states that Adobe, after sending a cease and desist letter, complained to the FBI that the software violates the Digital Millennium Copyright Act, which bans the manufacture of any technology designed to thwart copyright protection.

Then, Sklyarov came to the United States to make a presentation at a Las Vegas convention for hackers, and the FBI arrested him there July 17. He faces up to five years of jail time and could be fined up to $500,000.

Since then, protesters in San Francisco, San Jose and other cities nationwide have demanded his release. They say that breaking the code that prevents software from being copied should be seen as cryptography research, not as a crime. They claim that the software serves the purpose of pointing out flaws in Adobe's cryptography.

"This law . . . is being implemented to prevent criticism of encryption. That is just inconsistent with our traditions of open research and an open society," said Lawrence Lessig, a Stanford law professor and director of the school's Center for Internet and Society. Lessig wrote an editorial in the New York Times criticizing Sklyarov's arrest.

But Allan Adler, vice president for legal and government affairs at the Association of American Publishers, said that ElcomSoft's actions cannot be considered innocent research. The association, the largest publishing trade group, commended the Justice Department for the arrest.

Selling the program online hurt Adobe in much the same way that hacking into databases containing personal information can hurt consumers, he said.

"Would it be justified to expose somebody's hospital records or bank records, simply arguing that we did it to point out the flaws in the protections (on that information)?" Adler asked.

Sklyarov's supporters also say that his program has legitimate uses not related to pirating books. By converting eBook files to a more common format, it makes it possible for buyers to make backup copies of eBooks or read them on operating systems with which the eBook format doesn't work.

"I'd like to buy software and be able to transfer them to a new computer if I get a new one," said Evan Prodromou, a San Francisco programmer who helped organize the protests. The protesters have also set up a Web site, www. freesklyarov.org.

Book publishers say they need a tough law like the Digital Millennium Copyright Act or they'll never be able to make money selling electronic books. If programmers are allowed to crack eBook encryption, the next Napster-style trading system will be exchanging copies of "Moby Dick" instead of songs by Moby, they warn.

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But the publisher's trade organization is virtually alone in vocally supporting the government's case. The Electronic Publishers Coalition, a group of small publishers that focus on electronic books only, has criticized the arrest, saying that Adobe should learn from Sklyarov's program and perfect its system.

Even Adobe itself, the original complainant, has withdrawn its support for the case and called for Sklyarov's release. The company made an about-face after being threatened with boycotts and having 160 people protest outside its headquarters.

"The prosecution of this individual in this particular case is not conducive to the best interests of any of the parties involved or the industry, " said Colleen Pouliot, Adobe's general counsel, in a printed statement released jointly with the Electronic Frontier Foundation, a San Francisco online rights group that had urged Adobe to withdraw.

"They saw that it was bad business to push this, so they backed off," said Shari Steele, EFF executive director. Adobe did not return phone calls or e- mails.

This is not the first time the new copyright law has inspired protests. Last year about 50 people gathered in San Francisco to support a programmer who is being sued for violating the law by publishing a program that breaks the copy protection on DVD movies.

But the "Free Dmitry" events have created a lot more excitement, Prodromou said.

"What's really brought a lot of people out is that it's a very concrete thing. There's really someone in jail for this. Some of the other information rights cases are hard to wrap your head around," said Prodromou, who has organized protests where only six or seven people show up. But 160 people marched outside the Burton Federal Building in San Francisco last week, he said, and an even bigger protest is planned here in a few weeks.

The fact that Sklyarov is a foreign national with a wife and two small children -- a 2-year-old son and an infant daughter -- back in Russia heightens the drama.

But Adler asked for a little sympathy for the publishing industry, too. It's not yet clear how or if selling electronic books will ever become a profitable business in a world where people have become accustomed to getting information online for free.

"It's not an easy situation for publishers," he said.

Prosecuting Sklyarov without Adobe's cooperation won't be an easy situation for the U.S. attorney for Northern California, either. But the office has given no indication that it intends to drop the case now that Adobe has pulled out.

"We're not commenting on what Adobe says. They're not a party to the action, " said Assistant U.S. Attorney Matthew J. Jacobs. "It's a criminal case between the U.S. and the defendant."